Mr T Guggerty (Representative) For the v Respondent — 2023

The claimant was employed as a Distribution Depot Operative and was summarily dismissed with effect from 10 December 2020 after an incident on 2 December 2020 in which he and other DDOs lifted an empty trolley in a way the tribunal found was unsafe. He had completed safe systems of work training for trolley handling in April 2020, had almost nine years' total service with no prior disciplinary record, and initially accepted in the fact-finding meeting that his conduct had been "stupid" and that he would not repeat it.

The tribunal recorded that the claim form and witness evidence suggested a possible separate automatic unfair dismissal case under section 100 ERA 1996 based on health and safety/COVID concerns, but that issue fell away during the hearing. The claimant accepted that he was not one of those involved in any dispute about COVID testing and accepted that there was no evidence connecting any COVID issue to Mr Walsh's report of the trolley incident, so the tribunal said it only needed to determine the ordinary conduct dismissal claim.

Applying s.98(4) ERA 1996 and the Burchell approach, the tribunal found that Mr Eales genuinely believed the claimant had committed misconduct, that belief was founded on reasonable grounds, and the investigation was reasonable because it was supported by eye-witness accounts, CCTV footage, and the claimant's own admissions. The tribunal also rejected the argument that the appeal process was unfair because it was conducted remotely during the pandemic.

On sanction, the tribunal accepted that there were arguments both for and against dismissal. It noted the claimant's long and otherwise clean record, the absence of any actual injury, and that the incident took place during the COVID lockdown, but a majority of the tribunal held that summary dismissal still fell within the band of reasonable responses because the conduct was deliberate horseplay, created a serious risk of injury, continued after warning, and was later met with a defensive attitude from the claimant. The claim for unfair dismissal was therefore dismissed.